Failure to consider and address valid counter-arguments may leave an essay answer on thin ice, as illustrated by Bruce Wayne in the movie Batman Begins. Below is a video showing Wayne (pre-Batman) being trained in combat by Henri Ducard, who later turns out to be the villain Ra’s al Ghul. Ducard/Ghul reminds Wayne to “always mind your surroundings.”  But Wayne, hoping for a quick and easy win, ignores the fragile ice below his feet, leading to an equally quick and humbling defeat.  At about 1:00 into the video the battle reaches its climax:

Wayne: Yield!
Ducard/Ghul: You haven’t beaten me.  You’ve sacrificed sure footing for a killing stroke.

Anticipating and raising counter-arguments isn’t just law-school stuff: it’s what lawyers do every day.  If lawyers don’t anticipate counter-arguments, they’ll be blind-sided when their adversary — or worse, the judge — raises them.  Thus, a good lawyer has to be his own “best frenemy,” anticipating the arguments against his position.  This will enable the lawyer to take a number of crucial tactics, such as: 1) strengthening arguments to avoid leaving room for counter-attack; 2) rebutting counter-arguments after they are made; 3) preemptively rebutting counter-arguments before they are made; and 4) omitting arguments that turn out to have fatal defects.

Being mindful of one’s surroundings isn’t just limited to the courtroom.  A tennis player must consider the position of her opponent before returning the ball.  A chess player must anticipate his opponent’s range of counter-moves.  And law students — as well as superheroes — must do the same.

Advice part I (life and stress) here.
Advice part II (studying and attitudes) here.
Advice part III (back up your data) here.
Advice part IV (essay exams) here.
Advice part V (conclusory argumentation) here.
Advice part VI (incomplete argumentation) here.

By the time President Herbert Hoover laid the cornerstone of the building in February 1933, significant problems had arisen. Because the massive structure was to be constructed above an underground stream, 8,575 piles had been driven into the unstable soil, before pouring a huge concrete bowl as a foundation. Another difficulty arose over the choice of building materials. Both limestone and granite were authorized as acceptable, but construction began during the darkest days of the Great Depression, and suppliers of each material lobbied fiercely to have the government use their stone. Ultimately, as in the other Federal Triangle buildings, limestone was used for the exterior superstructure and granite for the base.

Here’s construction images:

September 30, 1932

September 5, 1933

December 4, 1933

October 1, 1934

As the National Archives notes, not only was the structure built in a troublesome location, but archives have special needs, further complicating the construction:

Constructing the National Archives was a mammoth task. Not only was the building the most ornate structure on the Federal Triangle, but it also called for installation of specialized air-handling systems and filters, reinforced flooring, and thousands of feet of shelving to meet the building’s archival storage requirements. The building’s exterior took more than 4 years to finish and required a host of workers ranging from sculptors and model makers to air-conditioning contractors and structural-steel workers.

Here’s a shot similar to the one used for the site logo.

June 1, 1934

Here’s a failed prediction of success.  1980s computer buffs may remember the venerable Amiga.  A 1985 article describes the $1295 machine in glowing terms.  Even with only 256 kilobytes of memory, the machine could run a Mac-like operating system, and with an emulator, also PC programs like Lotus 1-2-3 (a popular pre-Excel spreadsheet).  An Amiga representative predicted that Amiga would become “the new standard for home- and small-business computer needs.”  Needless to say, this prediction did not become reality, and the Amiga never became a widely used platform, instead outgunned and outnumbered by the less-powerful Macs and PCs of the era.

Here’s a failed prediction of failure, and a good reality check on how far we’ve come.  A 1995 article discusses the emerging use of the Internet:

Set aside for a moment the hype about what the Internet represents (“the assembly line of the electronic era”), what it could become (“the bedrock of the information superhighway”), or what it might turn us into (“a global community of data-seeking homebodies”).  Instead, let’s take stock of what it is.  This worldwide computer network you hear and read so much about is today little more than a high-tech candy dispenser for the eyes, ears, and mind.  It is fuzzy satellite weather maps, canned audio clips from the President, unfettered access to obscure college journals, and very likely, not one damn thing that will make a lasting difference in how you work, play, or live.

In fairness to the author, much of what he said was true in 1995.  He understandably bemoans the “impractical” nature of the web of its time, noting that “you can’t stop and make plane or hotel reservations” online.  But to be sure, the web very quickly made, and continues to make, a transforming difference in our lives.  But enough for now.  I have to pull up Expedia to get some plane tickets before getting back to the work I’m doing from home over Spring Break.  Later on, maybe I’ll order some coffee from Amazon, or watch some Hulu.  Or better yet, maybe I — a “data-seeking homebody” — should unplug and walk the dog, who could care less about computers and archives.

Have no doubt, typing was the most useful course I ever took.  More useful than math, IP, or Civ Pro.  There’s no substitute for being able to type with all your fingers rather than having to hunt-and-peck.

If you’ve never used an old-fashioned manual typewriter, you might not get the joke below.

H/T to my sister via Facebook.

Like many teens learning to play guitar in the 70s, I spent far too many hours torturing my parents and neighbors with the riff from My Sharona (along with, of course, the obligatory Smoke on the Water).

RIP, Doug.

Britain’s High Court ordered its first injunction via Twitter on Thursday, saying the social website and micro-blogging service was the best way to reach an anonymous Tweeter who had been impersonating someone.

The order will appear for the recipient the next time he or she logs into their Twitter account.  According to Andrew Walker at Griffin Law, “Whoever they are, they will be told to stop posting, to remove previous posts and to identify themselves to the High Court via a web link form.”

UPDATE 10/4: Last night I read a great article on the dispute in Time Magazine about the dispute, which involves “Conservative blogger Donal Blaney and a Twitter imposter tweeting as @blaneysblarney,” who has allegedly been impersonating as Blaney.  The article says:

in response to a petition filed by Blaney, the English High Court sent this “direct message” to @blaneysblarney via Twitter: “You are hereby ordered by the High Court of Justice to read and comply with the following order.” This was accompanied by a link to a web page containing the command to desist from the misleading tweeting. By clicking the link, the miscreant risks revealing his or her personal IP address, but Blaney realizes his shadowy opponent might not fall into this cunning trap.

Hat tip to Jim Bolin at Charlotte Law.

I think the proper role for statutory damages is to provide a basis for damages when actual damages or defendant’s profits are hard to compute or are nominal.  Here, actual damages may be nominal, since the cost of each song is more or less a dollar.  Statutory damages need to have enough of a bite that the plaintiff will have a legitimate remedy.  But they shouldn’t be so excessive that they give a plaintiff a windfall.  In the Tenenbaum case, $22,500 per song is such a windfall.  Sure, the jury might have awarded $150,000 per song for a total of $4.5 million.  But the fact that the jury didn’t go to the max doesn’t make $22,500 per song any less punitive.  If a bully breaks your nose, it’s no defense for him to say that he could have broken your arms, too, but chose not to.

That’s not to say that Tenenbaum should only be liable for $1 per song.  There are other purposes to statutory damages.  Reasonable deterrence — both specific and general — can also be appropriate.  But $22,500 per song is not necessary for such deterrence.  Even at a minimum level of $750 per song, the total damages would still be $22,500 total.  Tenenbaum may also be liable for plaintiff’s attorney’s fees, which would be many, many thousands more.  $22,500 plus attorneys fees is nothing to sneeze at, and for many, would amount to personal bankruptcy.  All this for 30 songs.

This brings me to my suggestion that statutory damages may have helped to kill the music industry.  The power of possible statutory damages is undeniable.  Someone who downloads 10 songs is liable, at least in theory, for $1.5 million plus attorney’s fees.  Whoa!  Such theoretical liability is chilling, and the music industry has relied on it to try to deter file sharers.  But I have to wonder if statutory damages also made the music industry complacent.  Instead of spending critical years of trying to adapt its business model to the internet, the industry spent years suing its own customers.  In the meantime, newcomers such as the iTunes store, swooped in to create new business models to take advantage.

Course pages are run through Lexis Blackboard, http://www.lexisnexis.com/lawschool.   You’ll need a Lexis ID to enroll, which will be provided to you at school.  In the meantime, the syllabus and first assignment for Civil Procedure I can be found here. 

This site, digital garbage, is my blog on law and technology, popular culture, photography, and whatever.  I also maintain a home page is at http://nathenson.org.  I post frequently to Twitter and Flickr, and much less frequently, to YouTube.

Here’s Dramatic Metrozoo Squirrel.